Do You Have The Right To Refuse A Roadside Breath Test In Victoria?

Do You Have The Right To Refuse A Roadside Breath Test In Victoria?In Victoria, police have the power to require a person to take part in a preliminary breath test, but do you have the right to refuse a roadside breath test? It is a criminal offence to refuse to submit to a breathalyser test. Roadside breath tests are required by law in Australia, where it is legal for police to stop any driver.

You do, however, have the right to request that the police officer give their name and badge number. A copy of the findings of the random breathalyser test is another option. You can file a complaint at the police station if you are dissatisfied with the way the police officer behaved. Experienced traffic lawyers at Josh Smith Legal will gladly help you resolve all your doubts.

What Is A Roadside Breath Test?

A roadside breathalyser test gauges an individual's breath alcohol content. It's a quick and simple method to find out if someone is operating a motor vehicle while intoxicated. Police in Australia use roadside breath testing devices. The policeman will request that the driver blow into a portable breathalyser.

The breathalyser calculates the alcohol content of the breath. Additionally, it gives a reading in grammes of alcohol (g/100mL) per 100 millilitres of breath. Police enforce the testing of driver's blood alcohol content on a frequent basis since drunk driving poses a serious risk.

In Victoria, You Do Not Have The Right To Refuse A Roadside Breath Test

In Victoria, following a collision, police will frequently ask for a breathalyser test. Additionally, they have the authority to pull over cars at random and ask the driver to submit to a preliminary breath test, or PBT.

If it is unclear who was driving, they have the right to demand a breathalyser test from:

  1. Anyone they see operating a motor vehicle on a road,
  2. Anyone they think was in control of a vehicle involved in an accident within the last three hours,
  3. Any person they think was an occupant of a vehicle involved in an accident within the last three hours.

A person giving instruction or occupying the seat next to a novice driver who was operating a vehicle on a road or in a traffic-related area may be subject to a breathalyser test. Prior to driving, a driver must often do a preliminary breath test (PBT) using a handheld breathalyser.  The police will request a breathalyser test, which often takes place in the police station, if that test reveals that the driver has alcohol in their system.

Analysis Of Breath

The motorist will be questioned at the police station, and if they are charged, the replies will be recorded and used against them in court. Refusing to produce a breath sample is illegal, similar to refusing a saliva sample when requested by law enforcement. Refusing to answer any questions other than supplying your name and address is legal.

After a few more interrogations, a second police officer will request a breath sample for analysis on a device that prints the blood alcohol content. The printout will indicate if the sample size is too small for the equipment to read. The policeman will permit three attempts at taking the reading. A person may face charges if, despite three attempts, there is still an inadequate sample or if they decline to provide one.

Victoria's Defences For Declining A Breathalyser Test Or Breath Analysis

If the motorist was unable to participate in the breathalyser test or produce a sufficient sample due to a medical condition, they may be able to defend themselves against the accusation of refusing to submit to a breathalyser in Victoria. For the court to consider this, expert medical evidence will be required.

Unless doing so would be medically harmful, the police may frequently order the motorist to submit a blood sample if they suspect a person may not be able to furnish one for a medical reason. If a blood sample is collected, a portion of the sample will be given to the driver so they can set up their own tests.

In contrast to several other jurisdictions, a driver is required to submit to a breathalyser test or breath analysis even if they are at home, provided that three hours have elapsed since the police had the right to request it.

Before, during, and after conducting a breath test, the police must follow several procedural requirements. If they don't follow the rules, the prosecution may not succeed.

Penalties

For the first offence, driving under the influence will result in a significant fine and a two-year licence suspension. The fine for a second conviction will be significantly higher, in addition to a four-year licence suspension and a maximum 12-month jail sentence. If convicted for a third or subsequent crime, 18 months is the maximum jail sentence for each offence.

Conclusion

Refusing to cooperate with a breathalyser test is illegal. In Victoria, it's lawful for police to pull over any driver and administer roadside breath tests. If a police officer asks for a breathalyser test, you have legal obligations to comply. You do have the right to ask the policeman to identify himself or herself and provide their badge number. The police may often require the driver to provide a blood sample if they believe the subject may not be able to provide one for medical reasons, unless doing so would be damaging to their health.

Resources And Further Reading

  1. https://www8.austlii.edu.au/cgi-bin/viewdb/au/legis/vic/consol_act/rsa1986125/
  2. https://www.mountsinai.org/health-library/tests/breath-alcohol-test#:~:text=The%20breath%20alcohol%20test%20measures,level%20to%20a%20dangerous%20level.

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